Any individuals currently in H-1B status have heard or misconstrued that the H-1B minimum salary has been raised from $60,000 to $90,000 (per annum); There has been no such increase. A bill that proposes to raise the salary requirements has merely moved to the House for a vote. Moreover, there is no such “minimum wage” when it comes to H-1Bs. Much of this confusion stems from the misunderstanding of what a prevailing wage is.
It is crucial to understand that “prevailing wage” is not the same as a minimum wage. Where a minimum wage is the lowest wage per hour that a worker may be paid as mandated by federal law, a prevailing wage is defined as the average wage paid to similarly employed workers in a specific job in the area of intended employment.
An H-1B visa is a nonimmigrant, professional work visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelor’s degree (at minimum) or higher degree for entry into the occupation in the U.S. To qualify as a specialty occupation, the position must meet at least one of the following criteria:
- A bachelor’s or higher degree or its foreign equivalent is normally required for entry into the particular position;
- The degree requirement is common to the industry in parallel positions among similar organizations, or in the alternative, an employer may show that the nature of the particular position is so complex or unique that it requires an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties are associated with the attainment of a bachelor’s degree or higher.
Although USCIS lacks Congressional authority to make wage determinations as the Department of Labor (DOL) is tasked with such responsibilities, USCIS has the authority to determine if the position is a specialty occupation. CIS may, however, consider the wage offered as further testament to the sophisticated nature of the proffered position.
To determine the prevailing wage rate, employers submit a request (known as Prevailing Wage Request on ETA Form 9141) to the National Prevailing Wage Center (NPWC) or by accessing other legitimate sources of information such as the Foreign Labor Certification Data Center – Online Wage Library. The H-1B program requires employers to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications – whichever is higher. This is to ensure that the hiring of a foreign worker will not adversely affect the wages and conditions of U.S. workers comparably employed, as required in the Immigration and Nationality Act (INA).
For instance: A transportation consulting firm in Los Angeles County is seeking a Systems Designer to determine the company’s network and computer systems needs and assist in the design of transportation signals and other electrical components.
After thorough review of the proposed job description, the duties of a Systems Designer are shown to be most parallel to that of a Network and Systems Administrator (Standard Occupational Classification code 15-1142.00). The employment will occur in the Los Angeles area.
Using the FLC Wage Library’s search engine, the results are as follows:
As reflected above, the employee must be paid wages within the permissible range of $55,806 – 106,558 per year.
Presently, there is no requirement to attempt to recruit American workers prior to filing an H-1B application. The bill in question (known as the Protect and Grow American Jobs Act) aims to change the criteria for “exempt H-1B nonimmigrants”. It also requests that employers send detailed reports to the DOL about efforts to recruit American workers, including how many applied, were interviewed, and the reasons why they were ultimately not chosen. The bill was first introduced in House on January 3rd, 2017 and recently passed the House Judiciary Committee on November 15th, 2017. Now, the bill moves to the House for a vote.
Under current regulations, an “exempt” H-1B nonimmigrant is a nonimmigrant H-1B worker who meets certain criteria whom an H-1B dependent employer may employ without having to meet certain otherwise required hiring criteria. An H-1B dependent employer is generally an employer whose H-1B workers comprise 15% or more of the employer’s total workforce. These additional obligations do not apply to an LCA filed by such an employer if the LCA is used only for the employment of “exempt” H-1B nonimmigrants (through petitions and/or extensions of status). An exempt H-1B nonimmigrant is an H-1B worker who meets one of the following statutory standards:
- Receives an annual wage of at least $60,000; or
- Has attained a master’s degree or higher (or its equivalent) in a specialty related to the intended H-1B employment.
So to clarify, the Protect and Grow American Jobs Act aims to revise the definition of “exempt H-1B nonimmigrant” to eliminate the masters or higher degree requirement and raise the annual salary threshold from $60,000 to $90,000. It does not, however, purport to assign a “minimum wage” requirement to the H-1B nonimmigrant classification.
There are numerous bills proposed each year, and many with regards to immigration in the past year. However, this bill proposing to raise the annual salary threshold requirement for exempt H-1B nonimmigrants has not been signed into law. Should this bill start to make any more strides, we’ll be sure to provide the details.
ABOUT THIS AUTHOR
Richard M. Wilner – Founding Partner
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.
Nancy Vo –Attorney
Nancy Vo is an Associate Attorney at Wilner & O’Reilly. She graduated Magna Cum Laude from Whittier Law School. While at Whittier, she was an editor on Whittier Law Review, had an article published in 2015, and earned a CALI award in Legal Writing. Ms. Vo earned a Bachelor’s Degree in Political Science and Public Law from the University of California, San Diego. She is a first generation Vietnamese American and the first in her family to enter the legal field. Ms. Vo works in the firm’s employment-based practice where she focuses on non-immigrant applications for Aliens of Extraordinary Ability, L-1 intra-company transfer visas for executives and managers, and E-2 treaty visas. She also has experience in family-based immigration matters and 601/601A waivers.
 20 CFR 655.731(a)(2).
 8 CFR 214.2(h)(4)(iii).
 20 C.F.R. § 655.705(b); see generally 8 C.F.R. § 214.2(h)(4)(i)(B).
 See generally 20 CFR 655.736.
 20 CFR 655.737(a)-(e).